IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.02.2010
CORAM
THE HONOURABLE MR. JUSTICE S. PALANIVELU
C.R.P.(NPD) No.2441 of 2009
and M.P.No.1 of 2009
Standard Literature Company (P) Ltd.,
rep. By its Manager
No.16, Ritchie Street,
Chennai 600002 ... Petitioner
Vs
1. Padma
2. Ashok
3. Banu Ragunathan
(R2 and R3 are represented
by their Power Agent R1) ... Respondents
Civil Revision Petition has been filed against the judgment and decree in R.C.A.No.972 of 2006 on the file of VII Court of Small Causes at Chennai, dated 05.02.2009 confirming the order and decree in R.C.O.P.No.1333 of 2002 on the file of XI Court of Small Causes at Chennai dated 23.08.2006.
For Petitioner : Mr. V. Raghavachari
For Respondents : Mr.B. Kumar
Senior Counsel for
Mr.R. Loganathan
O R D E R
1. The allegations contained in the eviction petition are as follows:-
1.(i) The first petitioner is wife of one late K. Sarangan. The 2nd and 3rd petitioners are her children. She represents petitioners No.2 and 3 also by power of attorney. K. Sarangan purchased the property in the year 1950 and a new building was constructed in 1969 in an extent of 1718 sq.ft. in total extent of 1 ground and 1578 sq.ft., leaving the rest of the area without construction. The respondent is in occupation of the property as tenant for several decades. The premises is in Door No.16, Ritchie street, Madras-2. It is paying a meagre rent of Rs.7,500/- alone. The construction has been made about 32 years back and it is not being maintained properly by the tenant. The petitioners required the premises for demolition and reconstruction, which requires immediate demolition. If it were totally demolished and new structure put up in its place, it could be put to more effectual use. Ritchie Street has become hub of electronic market not only for the state of Tamil Nadu but also for Kerala and Karnataka states. All people in need of electronic goods have to come only to Ritchie Street which one place can meet their needs.
1.(ii) Due to the existing construction and its situation, the petitioner is unable to use remaining vacant land which is about 2260 sq.ft. The area is now a commercial zone such that a person is entitled to construct the edge of the property more so as there is unique advantage of having road on two sides. The petitioner intends to put up a modern shopping complex as the area of the property ideally suited for that purpose. It will result in proper utilisation of the valuable property and in better and multiple return of the property. The property has weakened and dilapidated. The petitioners have wherewith all to construct the building. They have ready cash by way of bank deposits. They also possess large assets from which they can raise funds. Their requirement is bona fide.
2. In the counter filed by the tenant the following are stated:
2.(i) The petition has not been filed with any bona fide intention but with an oblique motive of somehow or other evicting the tenant and thereafter selling away the property. Brokers have been visiting and inspecting the building who stated that the building is for sale. There is no pleading to the effect that the landlord obtained any sanctioned construction plan. The alleged dilapidated structure about which reference is made is separated by a compound wall away from the area leased out to the respondent which has no ingress or egress to that area and nothing prevented the petitioners from demolishing the same after getting necessary permission and putting up any new structure therein. The said area is facing the other street Md. Hussain Sahib Street. The building rented is in a trim condition. This respondent is in no way connected with the entire area of the plot. The leased out area is 2400 sq.ft. It is absolutely false to state that the premises is not being maintained properly, the respondent has been spending large sum of money for the maintenance of the building. The contention that the building is required for demolition and reconstruction is false. The allegation that the property in Ritchie Street is very valuable is absolutely incorrect.
2 (ii) It is false to state that the petitioners are unable to use the remaining land in the property of about 2260 sq.ft. In the building there are two floors and even if a sanction for modern building plan be obtained, they can put up 1.5.fsi. It is not correct to state that the building is weakened and dilapidated. The respondent does not admit the statement that the landlords have enough resources to put up a new modern flat. The petition is vexatious, frivolous and it may be dismissed with costs.
3. After scrutinising all the material evidence and documents, the learned Rent Controller, XI Judge, Court of Small Causes, Chennai, has passed an order of eviction granting two months time. Aggrieved against the said order, the petitioner/defendant preferred R.C.A.No.972 of 2006 on the file of VII Judge, Small Causes Court, Chennai, which suffered dismissal. The order of eviction was confirmed and two months time for eviction was allowed. Hence, the defendant is before this Court.
APPRECIATION OF EVIDENCE OF POWER OF ATTORNEY:
4. The 2nd and 3rd respondents are son and daughter of the first respondent. Both 2nd and 3rd respondents are represented by their Power of Attorney, the 1st respondent. At the time of enquiry in the eviction petition, the 1st respondent authorised P.W.1 by name Srinath to depose on behalf of the landlords by means of authorisation letter Ex.P-1. He claims that the 1st petitioner (1st respondent) is his aunt. His examination on behalf of the landlords is subjected to much dispute by the petitioner by stating that there cannot be any delegation to an individual by the power of attorney of a party to the proceedings. In this case, the 2nd and 3rd respondents are represented by the 1st respondent and she has given authorisation to P.W.1. Hence, it is contended by the petitioner that the power of attorney cannot authorise another person to depose before the Court and hence his oral evidence has to be eschewed. In this regard the learned counsel for the petitioner Mr. Raghavachari placed reliance upon various decisions of Supreme Court as well as this Court to stress a proposition that a power of attorney cannot depose on behalf of his principal before the Court with regard to the facts which are within the personal knowledge of the principal. It is no doubt true that the 1st respondent has authorised P.W.1 to depose for herself and for 2nd and 3rd respondents. Even if her authorisation with respect to 2nd and 3rd respondents might be termed to be unsustainable, still whether her authorisation for herself in favour of P.W.1 would stand, has to be determined.
5. The learned counsel for the petitioner would rely upon a decision of the Supreme Court in Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. And Ors. [AIR 2005 SC 439] = 2005 (3) M.L.J. 109 (SC), wherein Their Lordships have held that the Power of Attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross examined on those facts which are to the personal knowledge of the principal. It is further held as follows:
“16. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri v. State of Rajasthan, 1986 2WLL 713 it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.
17. The aforesaid judgment was quoted with the approval in the case of Ram Prasad v. Hari Narain and Ors. MANU/RH/0233/1998. It was held that the word “acts” used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of CPC.”
6. Following a Division Bench decision of Bombay High Court, the learned Single Judge of that Court in MANU/MH/0532/2009 [Shri Ramachandra v. Smt. Rajashree and others] has observed as follows:
“… … … The question, in view of the Division Bench, was whether the evidence with regard to the bonafide requirement should or should not be accepted in a given case in the absence of evidence of the landlord himself. I am in respectful agreement with the observations that it cannot be laid down as a proposition of law that bonafide need cannot be proved without examining the landlord himself. In this case, the evidence of landlady’s husband about the need for her children was as good as evidence which the landlady could herself have given and therefore, her non-examination could not have been fatal to the case.”
7. As far as the facts in the above said decision are concerned, the subject matter was the requirement of the demised premises for the personal occupation of the landlady. But here, there is no requirement for personal occupation. It is further held in the said case that the evidence of landlady’s husband about the need for the children is held to be valid.
8. Mr.B. Kumar, the learned Senior Counsel for the respondents would submit that though none of the landlords were brought to box, still the authorised agent of 1st respondent has deposed, which evidence could be appreciated for the reason that he is stating about the facts as per records and there is nothing stated by him which is within the knowledge of the landlady, pertaining to their bonafide requirements.
9. The learned counsel for the respondent also cites a decision of this Court reported in 2008 (30) LW 840 [John Kennady @ Murugan v. V. Bhagavathi] in which S. Rajeswaran,J. has held that there is no legal bar for a power agent to give evidence on behalf of principals and how far that evidence is valid is to be considered only at the time of disposing of the suit. He also followed the ratio laid down in Janki Vashdeo Bhojwani’s case (supra) and also observed that the power of attorney is only going to depose in respect of the documents which are in existence and it is always open to the petitioner/defendant to cross examine the power agent with regard to documents.
10. He further referred to another decision of this Court in (2008) 1 M.L.J. 354 [Sakunthala v. Anandarajan] wherein it is held that power holder can appear as witness in a personal capacity and he cannot be permitted to give evidence where it is based on personal knowledge of the principal.
11. The learned counsel for the petitioner cites a decision of mine reported in 2009 (4) L.W. 673 [Usha Ranganathan v. N.K.V. Krishnan and another] wherein I have observed that the power agent may be permitted to conduct the case on behalf of his principal, while the stage of the case reaches recording of evidence, he is precluded from deposing on behalf of his principal as to matters which would be within the personal knowledge of his principal.
12. In view of the settled legal position, it is observed that the power of attorney can depose on behalf of his principal but he cannot reveal the matters which are in the personal knowledge of the principal. In this case oral evidence of P.W.1, with regard to the physical features of the demised premises and the means possessed by the landlords as borne out by record can be considered. To this extent, the authorisation of first respondent to P.W.1 is valid.
13. The Court has to bear in mind the principles formulated by the Supreme Court in Vijay Singh v. Vijayalakshmi Ammal [(1996) 6 SCC 475 ] case to ascertain the bona fide requirements of the landlord for demolition which are as follows:
i.bona fide intention of the landlord far from the sole object only to get rid of the tenants,
iii.the age and condition of the building, and
v.the financial position of the landlord to demolish and erect a new building
AS TO INTENTION OF LANDLORDS:
14. As far as the bona fide intention of the landlord is concerned, it could very well be ascertained from the pleadings. It is an admitted fact that the total extent of the demised premises is 1 ground and 1578 sq.ft. in which the construction is available in 1718 sq.ft. It is also pleaded that the demised premises is situate in Ritchie Street, Chennai, which is the prime locality in the city and the property is valuable one. If the remaining site without superstructures are allowed to continue as such, the landlords may sustain loss. It is further mentioned in the eviction petition that the property has got unique advantage of having roads on two sides and only if the existing structure is demolished and new building put up, the landlords could use their property to the maximum extent. Even though certain denial of allegations are available in the counter filed by this petitioner, the facts remain that the property is situate in a busy locality, that only in a portion of the entire premises, the building is constructed and that to get an optimum use, the entire property is needed for the landlords. The said factors would pave way to ascertain the bona fide requirement of the landlord. In the considered opinion of this Court, the landlords bonafidely require the demised premises for demolition and reconstruction.
AGE AND CONDITION OF THE BUILDING:
15. Insofar as the age and condition of the building are concerned, it is spoken by P.W.2, the engineer who inspected the premises and filed his report Ex.P-7. A careful scrutiny of his report would show that the building is not in a good condition. He has observed as follows:-
“Structural Cracks are visible on the entire length of Northern side and Eastern side Main Walls, drifting towards the roof from the flooring. The teakwood joinery looks crumpled with the door and window frames distorted from the frameline. The flooring near the partition wall joints has given away, exposing the cement Morter. The reinforcement props out of the RCC roof in the toilet of the ground floor announcing its befall. Rain water drain has no slope, allowing it to stagnate heavily in rainy season. The Generator room (RCC) has patches of infiltrated rain water in the Western side wall, deteriorating further more. The landing slab below the stair case has enormous structural cracks deviating in all directions.
The A/C sheet godown & staircase room of Second floor has broken edges of roof, forming an inward curvilinear droop. The wall areas have patches of seepage, left uncared for. Similarly, the open terrace in the second floor does not have weather-proof tiles to arrest water percolating down below. Proper chambering to disburse rain water has been done. The age of the entire superstructure is about 30 years which does not withstand the structural load, allowing the walls and foundation to disintegrate on account of excess seepages, deteriorating wood work and sub-standard material used in the process of construction work.
In my opinion, the superstructure has lived its age. Further activity in dumping of boxes and human conveyance may debilitate the structural strength, endangering the lives of people in future. I Recommend Immediate Demolition of the Superstructure.”
16. Significant it is to note that though he was examined in chief, he was not cross examined. Even if the non-examination is not considered against the petitioner, still his report and his deposition would portray that the building is in a dilapidated condition. The age of the building is about 30 years. There was no proper maintenance of the building. R.W.1 the manager of the petitioner’s establishment would say that they have carried out certain repair works as evident from the vouchers Ex.R-2 series and they have spent about Rs.53,000/- in 1998. Even if he has stated in his evidence that the Court appointed Commissioner at the request of the tenant, who inspected the premises, the said report has not been produced. However, it appears that he may mean the Engineer was for the purpose of fixing a fair rent in another proceedings. He also says that there is no necessity to demolish the building since it is in good condition. Even in his chief examination, he says that the old building portion on the back side of the building is about to fall. The cumulative effect of the above said circumstances would depict that the building is not in good condition, it has to be demolished and the same is old which has lived its age, as per the opinion of the engineer.
FINANCIAL POSITION OF LANDLORDS:
17. As for the financial position of the landlord for demolition and reconstruction, it is not much disputed. Ex.P-2 is the statement of accounts issued by Indian Overseas Bank, Sriramnagar at Madras. It shows that in the Savings Bank Account of 1st respondent Rs.14,55,395.30 was available as on 17.1.2003. Ex.P-3 to 6 are the documents which would show that the respondent invested sizeable amount in various institutions. It is the evidence of P.W.1 that both the 2nd and 3rd respondents have been gainfully employed in America and that they are in affluent circumstances. In view of the above, it is seen that the landlords possess sufficient means for demolition and reconstruction.
NON-PRODUCTION OF APPROVED PLAN:
18. It is pleaded in the counter and argued before this Court that the landlords have not produced any approved plan for new construction and hence the passing of eviction order could not be justified. It is true that the landlords have not produced any plan sanctioned by concerned authority. But the Apex Court has held in (2002) 5 SCC 229 [Harrington House School v. S.M.Ispahani and Another] that only on the plan being sanctioned by the local authority the decree for eviction shall be available for execution and such sanctioned or approved plans shall be produced before the executing court whereupon the executing court shall allow a reasonable time to the tenant for vacating the property and delivering possession to the landlord decree-holders. In view of the said decision, production of approved building plan is not a sine quo non for passing eviction order and production of the same is a condition precedent for ordering delivery of the property.
19. In the light of the observations aforementioned, this Court is fortified with a view that the requirement of the landlords for demolition and reconstruction is bona fide and hence the order of eviction has to be passed. So, the judgments of both the fora below have to be confirmed and they are accordingly confirmed. The revision has to suffer dismissal.
In the result the Civil Revision Petition is dismissed. No costs. Time for delivery five (5) months. Connected M.P. is closed.
23.02.2010 Index : Yes Internet : Yes ggs To The XI Judge, Court of Small Causes, Chennai 600104. S. PALANIVELU,J. ggs Order in : C.R.P.NPD.No.2441 of 2009 23.02.2010